Sunday, April 03, 2005

A Rhode Island Superior Court judge on March 31 issued an order extending the state's ban on smoking in bars and restaurants to include all private clubs, which had, in the original 2004 legislation, been granted an exemption until October 1, 2006. All other bars and restaurants in the state became smoke-free as of March 1, 2005. The order was in response to a lawsuit filed by a group of bar owners who are challenging the constitutionality not of the state's action to eliminate smoking in public places, but of the law's exemption of certain bars and restaurants: private clubs and small bars that do not prepare their own food.

According to an April 1 Boston Globe article: "Newport Superior Court Judge Stephen Fortunato Jr. ruled that temporary exemptions for Class C and D establishments with ten or fewer employees were irrational, and therefore unconstitutional." A preliminary hearing on the matter is scheduled for April 11, and in the meantime, the legislature may consider a bill to remove the questionable exemptions.

The Rest of the Story

The basic authority of the state to regulate smoking in bars and restaurants derives from the police powers granted to it by the 10th Amendment of the Constitution, which allow it to enact reasonable laws to protect public health, public morals, public safety, and the general welfare of the community. The key relevant limitation here is that the laws must be fair, sensible, and rational.

Given this context, I can see how Judge Fortunato Jr. may have a point in his decision to extend the smoking ban equally to bars regardless of their license type. A careful analysis of the exemptions in the law reveals that the two which the judge has questioned are:

1) The exemption of bars holding class D licenses: these are private clubs run by nonprofit or charitable organizations organized prior to 1900 and which have held a class D license since at least July 1, 1983 (see definition of class D license as well as definition of nonprofit organization); and

2) The exemption of small bars holding class C licenses: these are bars with fewer than 11 employees that do not serve any food prepared on the premises, except in Newport, where they may prepare food, and which may provide, but not sell popcorn, crackers, bread, pretzels, sausage of any type, pickles, sardines, smoked herring, lupino beans, and potato chips (see definition of class C license).

This means that in granting these exemptions, the legislature was treating as different, for example:

a class C bar with 10 employees and a similar bar with 11 employees;

a small bar that serves complementary lupino beans with its drinks and a similar bar that charges for those lupino beans;

a private club that obtained its alcoholic beverage license on June 30, 1983 and a similar club that obtained its license on July 1, 1983; and

a small bar in South Kingstown that serves pre-packaged and heated sausages and a similar bar in Newport that cooks up its own sausages.

While courts have generally granted legislatures wide discretion in factors that may be considered in applying public health laws, there may exist a limit beyond which certain exemptions will be viewed as irrational because they do not appear to be based on reason. The distinctions above do seem rather arbitrary, and there may be a legitimate case to be made before the Superior Court by the bar owners.

Regardless of the outcome of the case (and I think most likely it will become moot as the state will probably end up amending the smoking law to eliminate the exemptions), this story should be instructive for public health practitioners. It highlights the importance of public health advocates and organizations being consistent in their efforts to protect bar and restaurant workers from the hazards of secondhand smoke. If we are going to ask the state to impose its police powers in order to protect the public's health, then there should be good sense behind our decisions about who is to bear the burden of protection. In other words, if we are supporting legislation that exempts certain workplaces from regulation, then we must be able to justify, on public health grounds, the exemption of those particular workplaces. The fact that exempting certain workplaces makes a bill more politically acceptable is not a sufficient justification for us to support and advocate for such a regulatory approach.

If we make a finding that secondhand smoke is a substantial hazard for bar employees, then it is presumably an equal hazard for workers regardless of the type of bar in which they work. Regulation should then apply to all workplaces across the board, unless there is very strong and sound reason, based on public policy considerations, not to apply the law equally. Political palatability is not, I believe, a strong or sound justification for failure to support the equal application of public health regulations.

Perhaps the most disturbing example of the misuse of the police power with regard to regulation of smoking in workplaces is, I believe, the Oklahoma Board of Health's 2002 emergency smoking rule, which required bars and restaurants to either become completely smoke-free, create separately ventilated smoking areas, or allow smoking throughout the facility, and exempted restaurants with fewer than 50 seats. If the Oklahoma Health Department made a finding that secondhand smoke was a significant health hazard, then what sense did it make, from a public health perspective, to demand that workers either be completely protected from this hazard or completely unprotected? And what sense was there to apply the law based on the number of seats, especially since one would expect higher smoke concentrations in precisely the smaller establishments that were exempt? There was no public health justification for such an inconsistent application of the law. The inconsistency between the findings of the law and its construction would have, in my opinion, resulted in the invalidation of this regulation by the court considering the legal challenge to these rules had the legislature not intervened and enacted its own law.

If there is doubt in public health practitioners' minds about whether eliminating smoking in bars and restaurants is justified then they should not be promoting such legislation; however, once a finding is made that such an action is justified, then it should be applied equally to all businesses. From a public health perspective, the uneven application of health protections based on arbitrary (from a public health standpoint) distinctions between workplaces is not justified. While legislators may legitimately bring other considerations into the picture, we should not be in the business of treating businesses differently solely because we want to gain political support for our initiatives.

UPDATE (April 6, 2005; 9:55 pm): According to an article in today's Providence Journal-Bulletin, the Rhode Island House voted today to extend the state smoking ban to small bars and private clubs. The Senate is expected to quickly pass a similar bill.

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About Me

Dr. Siegel is a Professor in the Department of Community Health Sciences, Boston University School of Public Health. He has 32 years of experience in the field of tobacco control. He previously spent two years working at the Office on Smoking and Health at CDC, where he conducted research on secondhand smoke and cigarette advertising. He has published nearly 70 papers related to tobacco. He testified in the landmark Engle lawsuit against the tobacco companies, which resulted in an unprecedented $145 billion verdict against the industry. He teaches social and behavioral sciences, mass communication and public health, and public health advocacy in the Masters of Public Health program.